GERACI v. SHERIFF

*fn1 Petitioner named the Schoharie County District Attorney as the
respondent in this action. See Pet. at P. 1. However, the proper
respondent in a petition brought pursuant to 28 U.S.C. § 2254 is the
petitioner's custodian. See Rule 2(a) of the rules governing § 2254
cases; Viserto v. Goord, 97-CV-0633, 1998 WL 214814, at *1 n.1
(W.D.N.Y. Apr. 20, 1998). Since Geraci was incarcerated at the Schoharie
County Jail when he commenced this action, the court substitutes the
Sheriff of the Schoharie County Jail as the respondent in this
proceeding.

DECISION and ORDER

I. Background

A. State Court Proceedings

According to the testimony adduced at trial, Robert Missini was a New
York State Trooper assigned to the Community Narcotics Enforcement Team
("CNET") in Schoharie County, New York. See Transcript of Trial of Thomas
J. Geraci (10/1/96) ("Tr.") at P. 31.*fn2 On October 28, 1995, Trooper
Missini met with a confidential informant and they drove to a nearby
gasoline station where they met petitioner, pro se Thomas J.
Geraci (Tr. at PP. 33-34). Geraci and the informant engaged in a
brief conversation, and Geraci entered the vehicle and the three drove
for a period of time (Tr. at P. 34). Geraci informed Trooper
Missini that the lysergic acid diethylamide ("LSD") and cocaine which
Trooper Missini indicated he wished to purchase would cost $130.00
(Tr. at PP. 34-35). Trooper Missini provided Geraci with that
amount, after which Geraci exited the automobile, entered a nearby
building and returned to
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Trooper Missini's car without any drugs (Tr. at p. 35).
After the three men drove to another location, Geraci left the car,
entered another building, and returned with a clear plastic bag
containing a white powder.*fn3 Id. At that time, Geraci
returned $50.00 to Trooper Missini because he was unable to purchase LSD.
Id.

Geraci was indicted by a grand jury and charged with third degree
criminal sale of a controlled substance and fifth degree criminal
possession of a controlled substance (Tr. at PP. 5-6). Geraci's
jury trial commenced on October 1, 1996, with County Court Judge George
R. Bartlett III, presiding. At the conclusion, Geraci was found guilty of
both counts (Tr. (Volume II)*fn4 at P. 128). On April
9, 1997, Judge Bartlett sentenced Geraci to concurrent indeterminate
terms of one to three years imprisonment. See Sentencing Tr. (4/9/97) at
PP. 11-12.

Geraci appealed his convictions and sentence to the New York State
Supreme Court, Appellate Division, Third Department. That court affirmed,
People v. Geraci, 254 A.D.2d 522 (3d Dept. 1998). Geraci never
Page 4
sought leave to appeal that decision to New York's Court of Appeals
(Pet. at ¶ 9(e)), and Geraci did not file any other
state court challenges to his convictions. Id. at ¶ 10.

B. This Proceeding

Geraci filed his habeas petition pursuant to 28 U.S.C. § 2254 in
this District on March 19, 1999. See Pet. Before the respondent
filed his response, Geraci filed a notice with the court indicating that
he was no longer incarcerated (Dkt. No. 15). On October 25,
1999, the Office of the Attorney General for the State of New York,
acting on respondent's behalf, filed an answer and memorandum of law in
opposition to the petition (Dkt. Nos. 16-17).

II. Discussion

A. Release from Prison

Initially this court must determine whether Geraci's release from
prison has rendered this action moot.

Generally, a habeas petitioner's release from prison does not render
that party's habeas corpus petition moot because § 2254 requires only
that the petitioner be "in custody" at the time the petition is filed.
Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994); Cadilla v.
Johnson,
Page 5
119 F. Supp.2d 366, 371 n.2 (S.D.N.Y. 2000). The Constitution's
"case-or-controversy" requirement will also generally be satisfied by the
typical habeas petition challenging the validity of the conviction
because the incarceration (or restriction(s) imposed by the terms of the
parole) "constitutes a concrete injury, caused by the conviction and
redressable by invalidation of the conviction." Spencer v.
Kemna, 523 U.S. 1, 7 (1998); United States v. Mercurris,
192 F.3d 290, 293 (2d Cir. 1999) (citing Spencer).

&nbsp; In this case, Geraci's claims do not appear to have been rendered moot
by his release from prison because he filed his habeas petition while in
custody, and the collateral consequences which still exist as a result of
his felony conviction*fn5 preclude a finding that this matter is moot.
See Spencer, 523 U.S. at 12 ("it is an `obvious fact of life
that most criminal convictions do in fact entail adverse collateral legal
consequences'") (quoting Sibron v. New York, 392 U.S. 40, 55
(1968)); Binder v. Szostak, 96-CV-0640, 1997 WL 176353, at ...

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